Holt v Wynter

[2000] NSWCA 143

Reported Decision: [2000] 49 NSWLR 128
[2000] 31 MVR 467

New South Wales

Court of Appeal

CITATION:	Holt v Wynter [2000] NSWCA 143 revised - 26/06/2000
FILE NUMBER(S):	CA 40639/98
HEARING DATE(S):	26 November 1999
JUDGMENT DATE:	26 June 2000
PARTIES :	Kristy Maree Holt v Darren Maurice Wynter
JUDGMENT OF:	Priestley JA at 1; Meagher JA at 109; Handley JA at 110; Sheller JA at 111; Brownie AJA at 123

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 2651/98
LOWER COURT JUDICIAL OFFICER :	Acting Judge Cantrill

COUNSEL:	Appellant - L. King SC / R. Duncan Respondent - J.D. Hislop QC / D.J. Russell
SOLICITORS:	Appellant - Cater & Blumer, Griffith (City Agents: Uther Webster & Evans) Respondent - GIO Australia Ltd
CATCHWORDS:	Motor Accidents - leave to commence proceedings - principles governing exercise of discretion - shether Salido v Nominal Defendant consistent with Brisbane South Regional Health Authority v Taylor
LEGISLATION CITED:	NSW Limitation Act 1969 NSW Motor Accidents Act 1988 Motor Accidents Amendment Act 1995 Queensland Limitation of Actions Act 1974 Suitors Fund Act 1951
CASES CITED:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 House v The King (1936) 55 CLR Jago v District Court (1989) 168 CLR Kinnas v Petricca, unreported, 1 December 1998 Longman v R (1989) 168 CLR R v Abbott NSWCCA 5 July 1993 R v Geoghegan (1999) NSWCCA 20 R v Johnston NSWCCA 31 July 1998 Salido v Nominal Defendant (1993) 32 NSWLR Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 Sydney City Council v Zegarac (1998) 43 NSWLR
DECISION:	Appeal allowed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40639/98
DC 2651/98

PRIESTLEY JA
MEAGHER JA
HANDLEY JA
SHELLER JA
BROWNIE AJA


Monday, 26 June 2000

HOLT v WYNTER

MOTOR ACCIDENTS - leave to commence proceedings - principles governing exercise of discretion - whether Salido v Nominal Defendant consistent with Brisbane South Regional Health Authority v Taylor

The appellant was injured in a car accident in February 1992. Shortly afterwards she lodged a claim through her solicitor with the relevant insurer which was accepted more than six months from the date of the accident. The appellant changed solicitors five times. The progress of her claim was impeded by difficulties in obtaining her file from the first and second solicitors.
The appellant was informed by her third solicitor more than five years after her accident that s 52 of the Motor Accidents Act 1988 provided that a person was not entitled to commence proceedings more than three years after the date by which their claim had to be made except with the leave of the court. In 1998 the appellant applied to the District Court for leave to commence proceedings against the respondent. Her application was refused on the grounds that the delay had caused significant prejudice to the defendant. In particular the Judge found that the respondent’s insurer had been prejudiced by the fact that it…